State Consumer Disputes Redressal Commission
1. Mr. Vra Swarup vs M/S. Aliens Developers P. Ltd., on 19 July, 2023
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BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.196/2019
Between :
1.Mr.VRA Swarup, S/o.Mr.VC Prasad, Aged about 39 years,
2. Mrs.V.Hima Bindu, W/o.Mr.VRA Swarup , Aged about 38 years Both are R/o.C-21, Block -6, Kendriya Vihar, Indira Nagar, Gachibowli, Hyderabad - 500 035. Complainants And M/s.Aliens Developers (P) Ltd., Rep. by its Managing Director and Joint Managing Director, Mr. Hari Challa & Mr.Venkat Prasanna Challa O/o.Ms.Aliens Space Station, Tellapur, Ramachandrapuram Mandal, Medak Dist;
Hyderabad - PIN-502032. .... Opposite Party Counsel for the Complainant : M/s.V.Appa Rao Counsel for the Opposite Party : M/s.Raja Sripathi Rao CORAM : Hon'ble Sri V.V.Seshubabu, M ember (J), And Hon'ble Smt.R.S.Rajeshree, M ember (NJ).
WEDNESDAY, THE NINETEENTH DAY OF JULY, TW O THOUSAND TW ENTY THREE .
Oral Order :
01). The complaint is filed u/s.17(1)(a)(i) of the Consumer Protection Act, 1986 & 2002 on 18.10.2019 for directions to the opposite party as under:
i. to pay back the sale consideration of Rs.32,99,771/- with interest @ 20% from the date of receipt of sale consideration till payment of the same; or alternatively ii. to handover the schedule flat on completion in all aspects forthwith thereby cause of registration as required under law and provide Occupancy Certificate;
iii. to pay fair rent of Rs.10/- per square feet of super built up area per month w.e.f.
1.1.2013 to till handover of the same;
2iv. to pay Rs.5,00,000/- as compensation for causing mental agony, suffering and escalation of cost of construction; and v. to pay Rs.50,000/- as legal expenses.
02). The brief averments of the complaint are that the complainants are husband & wife and opposite party is a private limited company involved in the field of real estate besides development of lands into residential complexes; that the opposite party had undertaken a Development Agreement cum GPA with respective land owners for the development of land admeasuring Ac.19.26 guntas to raise residential complexes in Survey nos.384, 385 and 426/A at Tellapur Village in Ramachandrapuram Mandal, Medak Dist.; that the complainant entered into Construction Agreement dt.30.7.2009 with the opposite party for purchase of a flat bearing no.975, Station -12 on 9th floor of the complex by name Aliens Space Station -1 with a super built up area of 1874 sq.ft. with one covered car parking besides undivided share of land of 40.29 sq.yards for a total sale consideration of Rs.52,75,948/--; that the complainants paid Rs.32,99,771/- by availing home loan and agreed to pay the balance sale consideration basing on the progress in construction; that the flat shall be completed by 31.12.2012, failing which the opposite party has to pay compensation of Rs.3/- per square ft. of super built up area per month w.e.f. 1.1.2013; that though the complainants approached opposite party several times to know the stages of the construction of apartment complex, the opposite party had not provided such details; that the complainants got issued legal notice dt.15.8.2019 to the opposite party, for which no reply was given; hence the complaint seeking the reliefs as stated supra.
03). Opposite party filed written version and brief averments of the same relevant to the facts are that, there is no deficiency in service; that the allegations made in the complaint are denied except those that are admitted; that the complainant has not approached the Commission with clean hands and never he asked for refund of money or for cancellation of the agreement, as such cannot claim deficiency in service; that the complaint is barred by time since he entered into an Agreement on 30.7.2009 and as per the Agreement, opp.party agreed to handover the possession on or 3 before December, 2012 with a grace period of 6 months and hence the complaint is liable to be dismissed as it is not filed within the period of limitation as prescribe under C.P. Act; that there is a Clause in the Agreement to go for Arbitration in case of disputes, but it was not opted for; that the complainant not paid the entire instalments as stipulated under the Agreement for which the opposite party is entitled to cancel the allotment and forfeit earnest money; that the opposite party had fought for conversion of land from agriculture to non agriculture and after formation of HUDA has to obtain permission for agriculture zone to residential and commercial zone etc., and also with regard to the projects be in conformity with the master plan, to obtain 'No Objection Certificate' from the Fire Services Department and on several other aspects; that as per Clause XIV, the opposite party cannot be found fault with for non completion of project on time as the delay caused due to unavoidable circumstances which falls under "Force Majeure"; that as per Clause VIII(g) of the Agreement, the opposite party shall pay compensation charges at Rs.3/- per sq.ft. per month, in case of failure to deliver possession, and the said amount would be adjusted to the dues payable by the complainant; with these pleas the opposite party prayed for dismissal of the complaint with exemplary costs.
04). The complainant no.1 filed Evidence Affidavit as PW.1. Exs.A1 to A17 are marked on behalf of the complainants. Mr.Hari Challa, Managing Director of opposite party filed evidence affidavit as RW.1 and got marked Exs.B1 to B18. Mr.Venkat Prasanna Challa, Director of opposite party filed further evidence as RW.2 and got marked Exs.B19 & B23. Written arguments of complainants filed.
05). Heard both sides.
Basing on the pleadings of both sides, the points for
consideration are:
i. Whether there is deficiency in service
and unfair trade practice on the part of
the opposite party?
ii. Whether the complainant is entitled for
the reliefs as prayed for?
iii. Relief?
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06). Under Ex.A1, PW.1 paid only Rs.1,00,000/- and balance
payable was shown at Rs.51,75,948/-. It is the contention of
PW.1 that under Ex.A2 to A12 he made se veral payments totalling to Rs.32,99,771 including Rs.1 lakh paid under Ex.A1. Ex.A13 shows that PW.1 obtained Home Loan from SBI ., RACPA., Hyderabad on 5.9.2009 and a sum of Rs.43,32,000/- was sanctioned. Ex.A14 is the statement of account maintained by SBI in the name of PW.1 for home loan during the period from 10.9.2009 to 30.11.2018. Entry dt.14.9.2009 shows that Rs.18,47,082/- was disbursed under Home Loan. It is the contention of complainant no.1 that a sum of Rs.6,91,392/- was paid by them to the opposite party by way of cheque drawn on HDFC bank dt.12.9.2009. It is important to note that a cheque under Ex.A12 was issued prior to disbursement of loan that too drawn on HDFC bank. When the opposite party is categorically contending that they have not at all received the cheque amount under Ex.A12, it is for the complainants to establish the payment. Ex.A12 is not a demand draft or a bank pay order. When it was issued by way of cheque, it is easy for PW.1 to establish the payment by filing his statement of account maintained by HDFC Bank. Instead of doing so, simply relying on Ex.A12 to prove the payment. The burden cannot be placed on opposite party, since it amounts to nothing but proving the negative fact, because they vehemently opposing the receipt of amount under Ex.A12. Hence we are of the view that Rs.6,91,392/- shall be deducted from and out of the payments alleged to have been made by the PW.1. Then it comes to Rs.32,99,771/- - Rs.6,91,392/- = Rs.26,08,379/- .
07). Ex.A15 is the office copy of legal notice dt.15.8.2019 issued by PW.1 claiming that they have paid Rs.32,99,771/-. Inspite of receiving the same, the opposite party had not issued any reply. It is also the contention of opposite parties that they have paid Rs.9,12,000/- to the complainants. Ex.B23 goes to show that on 12.12.2019 a sum of Rs.9,12,000/- was paid by way of cheque to the complainants and it is not disputed by PW.1. So, the payment of Rs.9,12,000/- also shall be deducted from and out of the payments shall be made to the complainant, because we are of the view that it is a fit case for refund.
508). Ex.A14 goes to show that PW.1 paid the instalments almost regularly. So, the opposite party is liable to refund the EMIs with interest. The complainants paid about 60% of the total cost of the flat. The opposite party though agreed to demand for balance payments depending upon the construction, not made any such demands during the stipulated period, prescribed for delivery of possession. Due to the inaction of the opposite party, the complainants suffered mental agony. The initial amount was paid in the year 2009 still he has to wait for 10 years for the completion of the flat and ultimately filed the complaint. For these reasons, we are of the view that the opposite party is liable to pay compensation.
09). In the result, complaint is partly allowed directing the opposite party to refund Rs.32,99,771/- - Rs.6,91,392/-= Rs.26,08,379/- with interest @ 12% p.a. from the dates of respective payments made by the complainants till the date of payment; that the complainants are directed to adjust Rs.9,12,000/- received from the opposite party from and out of the amounts due to them with interest @12% p.a. from 12.12.2019 till the date of actual adjustment; that the opposite party is directed to refund the EMIs paid by the complainants to the Bank, with interest @ 10% p.a.; that the complainants are directed to file EMIs paid by them, by way of calculation memo within 15 days from the date of this order, by serving copy to other side to prove the compliance; that the opposite party is further directed to pay Rs.2 lakhs towards compensation and Rs.20,000/- towards costs.
Time for compliance is one month from the date of receipt of the order.
( Dictated to Steno, Transcribed and typed by her, pronounced by us in the open Court on this 19th day of July, 2023).
MEMBER(J) M EMBER(NJ)
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Dated : 19.7.2023 6 APPENDIX OF EVIDENCE W itnesses examined For the complainant For the opposite parties Evidence Affidavit of the Evidence Aff. of Mr.Hari Challa Complainant no.1 as PW.2 -Managing Director of the filed. Opp.party filed as RW.1.
Further Evidence Aff. of Venkat Prasanna Challa, Director of opp.party as RW.2 filed.
Exhibits marked on behalf of the complainants:
Ex.A1 : Photostat copy of Agreement of Sale dt.30.7.2009 between opposite parties and the complainants. Ex.A2 : Photostat copy of receipt dt.1.7.2009 issued by O.P. for the payment of Rs.1 lakh made by complainants. Ex.A3 : Photostat copy of receipt dt.14.9.2009 issued by O.P. for the payment of Rs.18,46,582/- made by complainants.
Ex.A4 : Photostat copy of receipt dt.7.2.2010 issued by O.P. for the payment of Rs.1,00,000/-made by complainants. Ex.A5 : Photostat copy of receipt dt.10.8.2011 issued by O.P. for the payment of Rs.2,63,797/-made by complainants. Ex.A6 : Photostat copy of receipt dt.5.11.2011 issued by O.P. for the payment of Rs.1,00,000/- made by complainants. Ex.A7 : Photostat copy of receipt dt.29.2.2012 issued by O.P. for the payment of Rs.22,000/- made by complainants. Ex.A8 : Photostat copy of receipt dt.30.6.2012 issued by O.P. for the payment of Rs.22,000/-made by complainants. Ex.A9 : Photostat copy of receipt dt.4.8.2012 issued by O.P. for the payment of Rs.22,000/-made by complainants. Ex.A10 : Photostat copy of receipt dt.7.8.2012 issued by O.P. for the payment of Rs.44,000/-made by complainants. Ex.A11 : Photostat copy of receipt dt.1.2.2012 issued by O.P. for the payment of Rs.88,000/- made by complainants. Ex.A12 : Photostat copy of cheque drawn on HDFC Bank dt.12.9.2009 for Rs.6,91,392/- .
Ex.A13 : Photostat copy of lr.dt.5.9.2009 from SBI to complt.no.1. Ex.A14 : Statement of account of the complainant with SBI from 10.9.2009 to 30.11.2018.
Ex.A15 : Copy of the legal notice dt.15.8.2019 issued on behalf of the complainants to the opposite party. Ex.A16 : Postal receipt .
Ex.A17 : Postal track report.
Exhibits marked on behalf of the opposite parties:
Ex.B1 : Photostat copy of lr.dt.31.12.2007 from Principal Secretary to Govt. , MA & UD Dept., A.P. Secretariat, Hyd. addressed to the Vice Chairman, HUDA. Ex.B2 : Photostat copy of G.O.Ms.no.288 dt.3.4.2008. Ex.B3 : Photostat copy of Lr.Dt.5.5.2007 from the Collector & Dist. Magistrate, Medak to the Vice Chairman & M.D.,HUDA.
Ex.B4 : Photostat Copy of the Minutes of the Meeting of the MSB Committee meeting for HUDA area held on 29.2.2008 .
Ex.B5 : Photostat copy of lr.dt.31.3.2008 from the HUDA to 7 the Principal Secretary to Govt. , MA & UD Dept., Govt. of A.P.,Secretariat, Hyd.
Ex.B6 : Photostat copy of lr.dt.11.4.2008 from the HUDA to the opp.party.
Ex.B7 : Photostat copy of lr.dt.11.4.2008 from the HUDA to the Executive Authority, Tellapur Gram Panchayat, Ramachandrapuram Mandal, Medak Dist. Ex.B8 : Photostat Copy of the Minutes of the Meeting of the MSB Committee Meeting for HUDA area held on 5.6.2008.
Ex.B9 : Photostat copy of lr.dt.14.10.2009 from HMDA to the Executive Authority, Tellapur Gram Panchayat, Ramachandrapuram Mandal, Medak Dist. Ex.B10: Photostat copy of Lr.Dt.12.8.2008 from Ministry of Environment & Forests to the Opposite party. Ex.B11: Photostat copy of lr.dt.24.11.2009 from the Principal Secretary to Govt. MA & UD Dept., A.P. Secretariat, Hyd. to the opp.party.
Ex.B12: Photostat copy of lr.dt.8.10.2010 from the opp.party to the Director (Plg) & I/c Member (UP) , HMDA. Ex.B13: Photostat copy of lr.dt.28.3.2011 from HMDA to the opp.party.
Ex.B14: Photostat copy of Cash Acknowledgement Receipt issued by HMWSSB.
Ex.B15: Photostat copy of certificate issued by IGBC on behalf of the Aliens Space Station 1. Ex.B16: Photostat copy of Certificate issued by CITYSCAPE -
Awards - Real Estate -Asia 2009 on behalf of Space Station 1 by Aliens Developers Pvt.Ltd. Ex.B17: Photostat copy of lr.dt.2.11.2015 from the opposite party to the owner of the flat no.2782. Ex.B18: Photographs of apartments and flat owners. Ex.B19: Photostat copy of Due Payment Reminder -2 Dt.28.11.2018.
Ex.B20: Photostat copy of Due Payment Final Reminder Dt.5.12.2018 issued to the complainant by the O.P. Ex.B21 : Postal track report and Lr.dt.25.5.2019 from opp.party to the complainant.
Ex.B22 : Mail dt.16.5.2019 from opp.party to the complainant. Ex.B23 : Proof of payment of Rs.9,12,000/-.
MEMBER(J) MEMBER(M)
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Dated: 19.7.2023